Brief Analysis of the House Republican Leadership's Secure the Southwest Border Supplemental Appropriations Act and the Secure the Southwest Border Act of 2014

The Republican leadership has drafted, and is preparing to introduce into the House of Representatives, an immigration bill. Division A of the legislation provides emergency supplemental funding to refill the depleted coffers of Customs and Border Protection (CBP) — primarily the Border Patrol — and Immigration and Customs Enforcement (ICE), their appropriated funds having been exhausted from dealing with the surge of tens of thousands of primarily Central American aliens crossing American frontiers in and around the Rio Grande Valley of Texas. Additional funds are also proposed in the bill to go toward National Guard and Health and Human Services (HHS) expenditures in support of surge efforts. All of the funding and rescission portions of the bill are captured within Division A.

The other half of the bill, Division B, deals with what the authors conceive of as border security provisions. They are nothing of the sort: Buried in them is a Trojan Horse permitting unaccompanied minors to ask for adjustment of status to lawful permanent residence (a "green card") based simply on a "special motion" to an immigration judge instead of meeting the criteria for relief that are established by law. The language is almost exactly that previously seen in the Cornyn-Cuellar HUMANE Act; only the order of presentation has shifted.

It is clear that close attention has been paid to criticisms levied against the White House emergency supplemental request. For instance, there are tightly written provisions to ensure that the administration expends funds solely and exclusively where apportioned, with no wiggle room to move those funds around (as the White House's own request would have permitted), and requirements for quarterly (or sooner) expenditure reports from the responsible officials (the Secretary of the Department of Homeland Security (DHS), Secretary of State, and Attorney General). Interestingly, Division A also contains specific rescission language relating to funds remaining in certain government accounts.

Title I — DEPARTMENT OF HOMELAND SECURITY/CUSTOMS AND BORDER PROTECTION/IMMIGRATION AND CUSTOMS ENFORCEMENT

Provides to CBP $71 million, available through the end of federal fiscal year (FFY) 2015, for salaries and expenses, apprehension and transportation costs, construction of temporary shelters, and "related activities to secure the border [and] disrupt transnational crime."

(Note: The reference to temporary shelters is a welcome change from prior language that made clear its intent to put the federal government into a position of long-term maintenance of family units and unaccompanied minor arrivals, rather than focusing on removals.)

Provides to ICE $262 million for detention and custody, and another $72 million for transportation and removal operations, the funds to be available through the end of FFY 2015.

(Note: It is disappointing that there is no allocation of funds to ICE for disruption of alien smuggling and transnational crime activities, many of which take place in the interior of the United States, far from border locations. It is also disappointing that there is no allocation of funds for cooperative multinational efforts to disrupt these illicit networks in Central America and Mexico, as has been done effectively in the past.)

Section 101 of the General Provisions of this title specifically states that "none of the funds provided by this title shall be available for obligation or expenditure through a reprogramming or transfer."

Section 102 of the General Provisions requires the DHS secretary to provide quarterly reports statistically breaking down the number of apprehensions into two major groups: unaccompanied alien children (UACs) and adults accompanied by minors, in various categories including the number of "credible fear of persecution" claims made by these two groups, the number of such claims approved, the number of asylum claims approved by immigration judges, the number in detention or alternative-to-detention programs, and the number of removals.

(Note: The phrase "unaccompanied alien child" has a particular legal meaning, in that the child must have no parents in the United States with whom he or she will be united. For this reason, use of the phrase "unaccompanied alien child" in the context of the bill may be inappropriate or confusing, insofar as many children are only unaccompanied at the time of arrival since their parents, already illegally here, made the arrangements for the child's smuggled passage. Perhaps a better phrase would be "alien child unaccompanied at the time of entry".)

Section 103 of the General Provisions rescinds that portion of the $405 million from the Federal Emergency Management Agency's Disaster Relief Fund'' that has not already been obligated pursuant to congressional action.

(Note: This would appear to be a way of recognizing the fact that the White House already raided these funds for use in the surge, based on the president's dubious invocation of an "emergency humanitarian disaster" that was, in fact, well over a year in the making.)

Section 104 of the General Provisions authorizes use of DHS "State and Local Program" grant monies by state and local law enforcement and public safety agencies on the southwest border for personnel and other costs related to combating illegal immigration, drug smuggling and humanitarian relief efforts.

Title II — DEPARTMENT OF DEFENSE/NATIONAL GUARD

Provides almost $12.5 million to the Army National Guard, available through the end of FFY 2015, for personnel expenses related to the southwest border.

Provides slightly more than $2.25 million to the Air Force National Guard, available through the end of FFY 2015, for personnel expenses related to the southwest border.

Additionally provides nearly $165 million to the Army National Guard, available through the end of FFY 2015, for operations and maintenance expenses related to the southwest border.

Additionally provides slightly more than $4.5 million to the Air Force National Guard, available through the end of FFY 2015, for operations and maintenance expenses related to the southwest border.

Section 201 of the General Provisions of Title II rescinds $35 million in excess cash balances within the Department of Defense Working Capital Funds.

Title III — DEPARTMENT OF JUSTICE/ADMINISTRATIVE REVIEW AND APPEALS

Provides almost $13 million to the Justice Department, available through the end of FFY 2015, for temporary immigration judges to handle cases arising from the surge of unaccompanied minor arrivals and adults on the southwest border.

Provides slightly more than $9 million to the Justice Department, available through the end of FFY 2015, for technology needed to expedite hearings by judges of the surge caseload.

Section 301 of the General Provisions of Title III rescinds $22 million for Legal Activities from the Justice Department Asset Forfeiture Fund.

(Note: The House proposal specifies that the additional funding for immigration courts is dedicated to accelerating the processing of surge cases, unlike the White House proposal, which would increase funding for the dysfunctional immigration court system without necessarily prioritizing the completion of surge cases – meaning that the aliens who arrived in the surge would get to go to the back of the line and have permission to live and work in the United States for as long as the case takes.)

Title IV — GENERAL PROVISIONS/REPATRIATION AND REINTEGRATION

Section 401 –

Authorizes and directs that, of the previously appropriated foreign aid funds earmarked for Central American countries, $40 million shall be specifically provided to those countries for activities relating to repatriation and reintegration of individuals removed from the United States.

Importantly, also requires the Secretary of State and USAID administrator to provide frequent reports (every 90 days) to Congress detailing efforts by those countries to improve their border security, interdict smuggling of persons, cooperate with repatriation and reintegration efforts of the United States, and halt the flow of individuals to the United States through a variety of measures.

Requires suspension of aid for failure of those countries to undertake such actions and certifications of progress from the Secretary of State prior to reinitiating aid, once suspended.

Section 402 rescinds $197 million of the unexpended balances available for bilateral economic assistance under the ''Economic Support Fund'', with the exception of monies specifically earmarked for global war on terrorism purposes.

Title V — DEPARTMENT OF HEALTH AND HUMAN SERVICES

Provides almost $197 million for ''Refugee and Entrant Assistance'', of which $47 million is specifically earmarked for "Social Services and Targeted Assistance programs".

(Note: By comparison, fully $1.8 billion (about 49 percent of the total) of the White House emergency supplemental request was for resettlement costs to be appropriated to the Department of Health and Human Services (HHS). Thus, this bill appropriates roughly 10 percent of the amount requested by the administration.)

Division B — Secure the Southwest Border Act of 2014

Title I — PROTECTING CHILDREN

Section 101 —

Amends that portion of the Trafficking Victims Protection Reauthorization Act (commonly referred to as the "Wilberforce Act") by altering the bright-line distinction between UACs from countries that are contiguous, versus noncontiguous, to the United States.

(Note: It does this specifically by inserting instead the phrase, "Canada, El Salvador, Guatemala, Honduras, Mexico, and any other foreign country that the Secretary determines appropriate" where the word "contiguous" was previously used. This may be a material weakness in the language of the bill, relying as it does on action by the DHS secretary to designate additional Central American countries such as Nicaragua or Panama. The secretary has already shown himself unwilling to use statutory language that exists in the Wilberforce Act (relating to "exceptional circumstances") in order to effect expeditious repatriation of surge arrivals. What is more, there are serious legal and policy reasons to believe that amendment of the Wilberforce Act is unnecessary to deal with the ongoing surge.)

Mandates that UACs, as defined in the Wilberforce Act, must be placed in expedited removal proceedings, as laid out in a new Section 235B of the Immigration and Nationality Act (INA) later articulated by this bill.

Prohibits release of UACs until repatriation, except when the child is subject to an order placing him into "usual" immigration removal proceedings based on a finding by the immigration judge that he may have a claim to relief under some portion of the INA.

(Note: Although counterintuitive, the mandatory detention provision will in the end work against the government's interest in rapid repatriation — presuming the government truly has an interest in repatriation — by vastly increasing the number of minors deemed to be UACs within the meaning of the Wilberforce Act. This is because when children who arrived unaccompanied are released to their parents, they cease to be UACs within the meaning of Wilberforce. If they arrive unaccompanied and are held, there is no way to establish that they were coming to join parents. What is more, the mandatory detention appears meaningless considered in the context of the entire bill, which is a cornucopia of options by which UACs can ensure that they are never returned to their country of nationality — see, specifically, the circuitous nature of dealing with asylum and credible fear claims discussed below, plus the "special motions" mentioned earlier, and again further below.)

Section 102 of the bill creates the new INA Section 235B mentioned above, which is entitled "Humane and Expedited Inspection and Screening for Unaccompanied Alien Children" —

The new INA § 235B requires immigration judges to hold hearings within seven days; and to issue decisions within 72 hours of conclusion of the hearing.

(Note: As written, the language of the section is inadequate. Even if a hearing is commenced within seven days, there is no indicator of exactly how long such a hearing may be prolonged, how many continuances or adjournments may be granted, etc. While legislative micromanagement is generally to be deplored, we have reached the point with immigration matters that it is to be encouraged. If there is no time limit for completion of these expedited hearings, this "within seven days" provision may serve no purpose whatever, given the inordinate delays that already accompany many (perhaps most) immigration court proceedings.)

The new INA § 235B would also permit immigration judges to issue subpoenas for witnesses (although it is not clear whether this is sua sponte only, or at the request of either party) and to levy civil penalties for contempt.

The new INA § 235B additionally lays out the form of the proceedings and rights of the alien.

(Note: The language laying out the proceeding is in many ways a re-cast of the language for proceedings found in the previously introduced Cornyn-Cuellar HUMANE Act, with the significant difference that this version specifies that the consequence for failure to appear will result in an in absentia order of removal, and it reiterates the ban on government-funded representation of aliens.)

The new INA § 235B provides that if a UAC indicates a desire to file for asylum, or a fear of persecution, the immigration judge will remand the case for a "credible fear" hearing by an asylum officer. If the asylum officer determines that the alien lacks a credible fear, he or she will order the UAC removed "without further hearing or review".

(Note: The "without further hearing or review" language is disingenuous. Three paragraphs later, the bill requires the Attorney General to establish regulations by which immigration judges will review credible fear denials by asylum officers. One wonders, then, why the useless asylum officer interview loop was placed in the bill. Why not simply require the immigration judge to hear the claim of persecution or fear of return when the alien makes it in the first instance?)

The new INA § 235B also establishes a last-out/first-in docketing priority for arriving UACs, in order to attempt to reestablish a modicum of order on what has been essentially a chaotic federal response to the arrival of the thousands of minors and adults in the last several months.

Finally, Section 102 of this bill lays out language providing for extensive judicial review of orders issued under the new INA § 235B, by amending existing INA Section 242.

(Note: The judicial review process will eliminate any real possibility of prompt repatriation of unaccompanied minors. Thus, the siren song of trekking north will remain strong and unabated.)

Section 103 contains virtually the same "special motion" proviso of the Cornyn-Cuellar bill that will almost certainly result in the grant of thousands of applications for adjustment of status simply because the alien asks, and which the immigration judge must grant unless the government can establish by some unknown standard that to do so would be "manifestly unjust".

Section 104 provides for emergency designation of up to 40 temporary immigration judges who will be trained and qualified to conduct hearings under the proposed new INA § 235B.

Section 105 requires biometric and biographic criminal history checks of individuals who may be interested in placement of UACs in their custody, and prohibits the HHS Secretary from placing UACs into the custody of anyone convicted of certain sex or trafficking offenses. It contains the same material weakness that existed in the similar language of the HUMANE Act bill, in that many individual who will receive custody are foreign nationals whose criminal histories in their countries of origin will not appear on any federal or state criminal or sex offender repositories.

Section 106 amends the bars for asylum to include "drug-related offense[s] punishable by a term of imprisonment greater than one year".

Title II — USE OF NATIONAL GUARD TO IMPROVE BORDER SECURITY

Section 201 provides that the amounts appropriated for Army and Air Force National Guard operations under Division A shall be used to deploy personnel and materiel in a support capacity on the southwest border, with particular attention to those portions of the border experiencing high volumes of UAC crossings. However it does not activate, nor require activation of, National Guard troops at the border.

(Note: Curiously, it is within a subsection of this Section dealing with National Guard operations that "unaccompanied alien child" is redefined to include those for whom "no parent or legal guardian in the United States is available to provide care and physical custody". That would be virtually every border crosser under the age of 18, since prior provisions in this bill specify that children must remain in the custody of the government, thus eliminating the "availability" of parents even if they are in the United States.)

Title III — NATIONAL SECURITY AND FEDERAL LANDS PROTECTION

Section 301 prohibits the Secretaries of Agriculture and Interior from establishing rules that impede border patrol and protection operations on federal lands within 100 miles of the border. It contains a proviso that such patrol authority does not extend to state or private lands.

(Note: As written, the language might be misconstrued, insofar as it makes no acknowledgement of the already existing proviso permitting access to state and private lands when within 25 miles of border remains in effect. The omission might be construed by some as removing the preexisting, and critically important, right of access to all lands within 25 miles.)

Section 302 expresses the sense of the Congress that the Secretary of Defense should not permit "placement of unauthorized aliens at a military installation" except under certain specified conditions.

Conclusion

While the appropriations sections of the bill are a great improvement over the President's request, and focus government spending more directly on repatriation of the families and children who crossed in the surge, the sections of the bill addressing the processing of unaccompanied alien children are little more than a repackaging of the worst elements of the HUMANE Act.

There is nothing in the provisions of Division B of this bill that merits serious consideration by any member of Congress truly interested in abating the flow of minors and family units northward.

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